In this episode of Litigation Nation, co-hosts Danessa Watkins and Jack Sanker dive into two significant legal topics that are currently shaping the landscape of litigation in the United States.
The tax and spending bill (a.k.a. 'The Big Beautiful Bill') has raised eyebrows due to its implications for federal court contempt powers. The bill, which passed the House by a narrow margin, includes a provision that could severely limit federal courts' ability to enforce temporary restraining orders (TROs) & injunctions, in contrast to most new legislation it is written to be retroactive affecting previous rulings issued by federal courts. Specifically, the provision states that no court may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or TRO if no security was provided when the order was issued. This change could have far-reaching consequences, particularly in immigration cases and other areas of law where TROs are commonly sought. Jack explains the mechanics of Federal Rule 65C, which requires parties seeking injunctions to provide a surety bond to cover potential damages if the injunction is later found to be wrongful. The discussion highlights the potential chaos that could ensue if existing injunctions without bonds become unenforceable, particularly in cases involving civil rights and government actions.
We then shift focus to the use of pseudonyms in litigation, and the delicate balance between the public's right to access judicial proceedings and the need for individuals to protect their identities in sensitive cases. Recent court decisions have indicated that the avoidance of reputational harm is not a compelling enough reason to allow litigants to proceed anonymously. A notable case from the Seventh Circuit involving a lawsuit against the University of Illinois, Initially allowed to proceed under a pseudonym, the university later objected. This case underscores the challenges faced by individuals who may have legitimate reasons for wanting to protect their anonymity, particularly in cases involving sensitive allegations.
We encourage our listeners to stay informed about how these issues may affect their rights and responsibilities in litigation.
Join us as we discuss the complexities of critical topics and we encourage our listeners to stay informed about how these issues may affect their rights and responsibilities in litigation.. Don't forget to subscribe to Litigation Nation for more updates on legal news and analysis!
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Danessa Watkins (00:05):
Welcome to Litigation Nation. I'm your
host, Danessa Watkins, here withmy cohost, Jack Sanker. As a
reminder, this is the show whereevery two weeks, we'll give a
wrap up of the new and excitinglegal news from across the
country. What are you gonnashare with us today, Jack?
Jack Sanker (00:20):
The new tax and spending bill that just passed
the house today actuallycontains a pretty severe
limitation on the federal courtcontempt powers to enforce
injunctions and temporaryrestraining orders, could have
wide ranging implications. Thisis gonna tie into the overall
immigration fight that'shappening. But it also is a big
land landscape change for anyonethat litigates a federal court.
Danessa Watkins (00:43):
Got it. Excellent. Alright. And I'm
going to cover the seeminglyrecent push to preclude
litigants from filing lawsuitsunder a pseudonym. So like Jane
Doe or John Doe, to protecttheir privacy interests.
So all that and more, here'swhat you need to know.
Jack Sanker (01:05):
Tucked away in the federal spending bill that just
passed the house by a one votemargin today, and today is May
22, is a seemingly innocuousprovision that, if passed by the
Senate, will severely limitfederal court's abilities to
enforce temporary restrainingorders and injunctions. The
(01:26):
provision reads from the bill,quote, no court of the United
States may use appropriatedfunds to enforce a contempt
citation for failure to complywith an injunction or temporary
restraining order if no securitywas given when the injunction or
order was issued pursuant tofederal rule of civil procedure
65 c, whether issued prior to,on, or subsequent to the date of
(01:48):
enactment of this subsection,unquote. For the analysis of
this provision in the bill, I'mgonna be relying on an article
published, on justsecurity.org,is by a Berkeley School of Law
professor Irwin Chemerinsky. Andthe provision in this new bill
(02:09):
is is relying on and referencesfederal rule 65 c, which says,
kinda generally that judges canissue temporary restraining
orders or preliminaryinjunctions only if the party
seeking the TRO or theinjunction provides a, quote,
security in an amount that thecourt considers proper to pay
the costs and damages by anyparty found to have been
(02:30):
wrongfully enjoined orrestrained, unquote.
So what is what is the purposeof federal 65 c, which already
exists, by the way? It's so thatif someone is enjoined via a TRO
or a preliminary injunction, andthen it turns out that the entry
(02:51):
of those orders was wrong andthey get reversed or overturned,
the party who was enjoined orwas subject to the restraining
order can recoup whatever coststhey incurred as a result of
this. Temporary restrainingorders and injunctions,
preliminary injunctions, arekind of they're pretrial
remedies that a court hasreally, really strict latitude
(03:15):
to enforce. I won't get into thespecific, like, four or five
factors that a court has to gothrough, but basically, it's a
way for a litigate to show up incourt and say, listen, There's
ongoing harm that's happening tome that the defendant is doing
in one way or another. It'shappening right now.
You have to satisfy a number ofdifferent factors, and the court
(03:36):
will say, listen. Based on whatyou've shown so far at this very
early point in the litigation,I'm going to enjoin the
defendant from continuing hiswhatever they were doing. I'm
gonna temporarily put a stop toit. And or if it's a temporary
restraining order, it's, youknow, we're going to stop
whatever else it was they weredoing. This comes up in a dozen
(03:56):
different areas of law prettycommonly.
Danessa Watkins (03:57):
Like the idea is, let's preserve the status
quo while we figure out what'sgoing on So
Jack Sanker (04:02):
like, in my experiences, it comes up quite a
bit in like intellectualproperty litigation, things like
that. Like if you're infringingon my trademark, for example, or
any of my IP, like, yes, we'regoing to have a trial on that
down the road where we figureout whether you actually did or
didn't. And we're going to dodiscovery on that. And that
process is going to take, know,years or whatever. But in the
meantime, you're still doing itover those many years, and you
(04:26):
could hurt me so badly that myintellectual property becomes
worthless by the time we get totrial.
Mhmm. So I'm gonna ask the courtto stop you now on a temporary
basis and, while we sort thisout. And a court can decide to
do that or not. So so 65 c,allows the court to require the
party seeking the injunction ofthe TRO to to provide a
(04:50):
security, which is in form of asurety bond, is think of it like
a mini insurance policy that thebondee, which is the person who
is seeking the injunction, hasto get, and has to, purchase
from a surety company. I'll talkabout this process a little bit
later.
(05:10):
That basically sets aside a potof money so that if it turns out
that the injunction wasincorrectly ordered by the
court, the party that waswrongfully enjoined can get
back, you know, whatever it isthat they lost. So using my
intellectual property example,if, you know, a party is, like,
selling something that's basedon the intellectual property or
that's allegedly based on theintellectual property of someone
(05:31):
else, they're enjoined fromselling those things during the
course of litigation. The costthat they would have incurred as
a result of that injunctioncould be calculated as the sales
that they lost. Like, weren'tallowed to keep selling their
thing. Turns out that they wereright all along.
Danessa Watkins (05:46):
So in this process, is it the defendant or
the party that's going to beenjoined? Are they the ones that
would typically say, you know,judge, we need a surety in this
amount? This is what weanticipate our losses would be?
Jack Sanker (06:01):
The court sets a actually, you know, we'll just
do that part now because I havea kind of a breakdown of how the
surety bond process works. And Ithink it's useful because it's
even, you know, people thatlitigate for a living don't
necessarily go through this.
Danessa Watkins (06:17):
I was gonna say,
Jack Sanker (06:18):
I didn't even
Danessa Watkins (06:19):
know this was part of this.
Jack Sanker (06:21):
Yeah. Yeah. Yeah. So like, so like, what I'll
start with, like, what are courtbonds? You know, what are surety
bonds?
They're They're securities thatlitigants have to provide to the
court. I think I mentionedbefore, you could think of them
like a mini insurance policythat you buy to insure against,
you know, an outcome where theother side is damaged
wrongfully. The litigant has togo to a bond, go get a bond from
(06:44):
an approved surety company, theyhave to apply for the bond. The
application process is based on,you know, on a lot of different
factors such as the bond amount.The bond amount is set by the
court.
So that's the overall money thathas to be bonded, which is, you
know, again again, can becalculated as, like, what are
the damages that the litigantmight suffer. In the case of an
(07:09):
injunction against thegovernment, which I'll get back
to you, but this is really whatthis new legislation is really
all about, I think. The bondamount, must cover the cost of
the injunction, if the if it'slater reversed, costs of
temporarily stopping a nationalpolicy such as, like,
deportation, something likethat. I think and I haven't been
(07:34):
down this road myself as alitigator. It's not the type of
law I do.
But I think it could, you know,ostensibly involve, like, paying
federal law enforcement or,like, airline tickets to, you
know, sending folks away todifferent countries, things like
that. I imagine that the costsof that the government could
claim they they were entitled toin the event that they were
wrongly enjoined could be quitehigh. Mhmm. But in like
(07:56):
traditional like contract casesor IP stuff or whatever, like in
the examples I gave earlier,like sales or things of that
sort, you know, that those aregonna be up for consideration by
the court when it sets the bondamount. So the application so
the applicant, which is theplaintiff who wants the
injunction, has to apply for thebond, the surety company
assesses the the final positionsorry, the financial position of
(08:17):
the bondee, the applicant.
So like their credit score,liquid assets, and then sets a
bond premium that has to be paidby the bondee. So that's the fee
that the bondee has to pay tothe surety company to provide
the bond, which then gets filedwith the court. Obviously, the
worse your, you know, credit orfinancial situation, the more
(08:39):
expensive the premium for thebond will be just like anything
else. That's obviously going tobe very relevant in the case of
undocumented immigrantschallenging immigration orders.
Right.
They're probably, you know, wecan assume quite poor. The bond
gets filed with the court in theevent that the TRO or the
preliminary injunction isoverturned. The defendant and,
like, in an immigration matter,that means the government can
(09:00):
recoup their costs via the bond.So how much do bonds, like,
typically cost for, I would say,you know, my in my experience,
and I I looked a little bit, dida little research on this, you
know, typically, like, you know,this happens a lot in contract
cases or, like, even, like,mechanics lien cases or
whatever. It's like somewherebetween one to 10% of the total
(09:23):
bond and amount.
For extremely poor folks, that'sprobably going to be either be
much higher or they just won'tqualify for one. Right? Which
means they can't provide a bondto the court, which means they
can't get a preliminaryinjunction or a TRO based on
this new legislation.
Danessa Watkins (09:40):
Oh, okay. So currently, there's probably some
provisions that allow for, like,like when you can apply to the
court to waive, you know, courtcosts because you you can show
that you don't have the the forthem.
Jack Sanker (09:51):
And another caveat is that the the courts have
latitude to set the bond out,like, at a dollar. Right? They
they can say the bonded amountis a dollar here. Got it, okay.
So like we're, you know, youdon't, you you pay a dollar and
you get what you want, right?
Got it. So the court, even underthis new legislation, the courts
will have that. We'll still beable to say the bond amount is a
(10:13):
dollar. Okay. And thatdiscretion of setting the bond
amount has not been changedunder this new legislation.
However, it is the practicewidespread among federal judges
to not require bonds insituations where the party
that's going to be enjoined isthe federal government.
Danessa Watkins (10:33):
Okay.
Jack Sanker (10:34):
So if you're seeking a TRO or to enjoin the
federal government from doingsomething that is
unconstitutional or violatesyour rights, you would You
typically are not required toprovide a bond to the court.
That's the standard practicethat is most widespread. There's
examples on both sides of it,it's pretty common. Especially,
(10:56):
again, in a situation where yourconstitutional rights are being
infringed and a hundreddifferent things you could think
of, civil rights cases. And in,know, what we're gonna talk
about in a moment, immigration.
Danessa Watkins (11:13):
Okay. So this new legislation says the judges
are still gonna have discretionin setting the bond amount, but
they still but they have toabsolutely require a bond. There
is
Jack Sanker (11:23):
Well, the legislation says it's actually
it doesn't change the thecourt's, you know, requirement
or discretion, but what it saysis it's a little different. It
says the court, of the UnitedStates federal courts cannot use
appropriated funds to enforce acontempt citation for failure to
(11:45):
comply with an injunction or TROif no security was given when
the injunction or order wasissued. So Okay. I see. What it
does is if you got an injunctionor a TRO, and you did and you
were not required to provide abond because the court didn't
ask you to, at that point, Thislegislation will strip from the
(12:06):
federal judges the ability toenforce the TRO or the
injunction through its contemptpowers.
Danessa Watkins (12:15):
Okay.
Jack Sanker (12:15):
Yes.
Danessa Watkins (12:16):
Interesting.
Jack Sanker (12:17):
So the court can enforce the TRO and the court
can even and this is not even ascenario when, you know, the
other side is wrongfullyenjoined. They could be
rightfully enjoined Right. Inthis scenario. But the court
cannot enforce it, period, ifthere's no bond. Cannot enforce
it via their contempt powers.
Danessa Watkins (12:34):
And
Jack Sanker (12:35):
the really interesting part is the little
section at the end here. It sayswhether issued prior to, on or
subsequent to the date ofenactment of this subsection
prior to. So it's like it'sretroactive.
Danessa Watkins (12:49):
Oh, okay.
Jack Sanker (12:49):
Yeah. So of the I'll get back to the
Danessa Watkins (12:53):
So there so Yeah. Just to for a minute. So
just to break down what thatmeans. So there are probably, I
don't even know how many judgesout there who have Yep. Received
TROs Yep.
Because of this situation havenot required bonds. And then
now, if this new bill is it abill? Mhmm. If this new bill
(13:16):
goes
Jack Sanker (13:17):
This is the this is the like like the big beautiful
bill
Danessa Watkins (13:20):
that Okay. The tax part of that.
Jack Sanker (13:21):
Okay. Is the the reconciliation bill. This is tax
and spending bill. Got it. It'slike $6,000,000,000,000 bill or
whatever the heck it
Danessa Watkins (13:27):
is. Right. Right.
Jack Sanker (13:28):
Right. The big beautiful bill. Yeah. It and it
just it was just passed theHouse, so it goes to the Senate.
Danessa Watkins (13:32):
Right. Yeah. Okay. So if this bill gets
passed and signed
Jack Sanker (13:35):
Yeah.
Danessa Watkins (13:36):
That means that for all of those cases Yeah.
Where before this was evenintroduced Yes. There's a party
that is currently under a TROYeah. That defendant who is
prevented from doing whatever itis they're gonna do
Jack Sanker (13:50):
Yep.
Danessa Watkins (13:50):
They can do that thing
Jack Sanker (13:52):
Yep.
Danessa Watkins (13:53):
And they there's nothing the judge can do
about
Jack Sanker (13:55):
it Correct.
Danessa Watkins (13:55):
Yes. If that judge didn't require it.
Jack Sanker (13:57):
If there was no bond required. Yes. Which was
which is relatively commonpractice up until this point.
Danessa Watkins (14:03):
I mean, it's very confusing. Like, I I didn't
get it the first time you readit. And then when we started
talking about it, like, now it'scoming to me. So I'm It's
clever. Sure there are so manypeople that don't actually
understand how this is gonnawork.
And I hope those aren't thepeople that are voting on this
because
Jack Sanker (14:19):
It's well, that's a great that's a that's an
interesting point, because as Iwas looking into this, there
were, you know, debates in thehouse about this and there were
a number of legislators who didnot get it. Yeah. They like, no,
no. Bill actually just onlystrips from the federal courts
the ability to issue nationalinjunctions, which is a topic
(14:40):
that we talked about in our lastepisode that Yeah. Which I said,
by the way, was gonna becomeMhmm.
And I'm like, call my shot, youknow, was going to become a
major issue over the next coupleof weeks as circuit courts
around the country are enjoiningthe federal government from
doing, I mean, a lot of things,but in in particular, the the
deportation that's happening tothe El Salvador prison Mhmm. The
(15:01):
mega prison, you know, whatever.And so, like, rather than, like,
defend that on the merits of,like, this is, you know, legal
or it isn't or this particularindividual was rightly or
wrongly detained, the target nowis, well, Circuit Courts
shouldn't be allowed to do Theyshould only be allowed to, you
know, intervene on behalf of theone individual who has filed
that specific lawsuit. Theyshould not be able to join the
(15:24):
federal government from doingthis entire policy nationwide.
Danessa Watkins (15:26):
Mhmm.
Jack Sanker (15:27):
So that's like the bull's eye that this is seeking
in a roundabout way to get at.
Danessa Watkins (15:33):
Got it.
Jack Sanker (15:33):
Because now, you know, all of these district
court orders enjoining thosepractices or enjoining the
federal government's activitiesin that regard, more likely than
not, probably did not require abond. Yeah. And so to your
point, who cares what happensnext because they can't enforce
(15:54):
it via their contempt powers.
Danessa Watkins (15:55):
That's insane. Mhmm.
Jack Sanker (15:56):
So yep. So It's
Danessa Watkins (15:59):
just like I I feel like every day I'm just
like, what is happening? Yeah.Okay. Go. Sorry.
So
Jack Sanker (16:05):
let me go back to to the piece I was quoting from
earlier.
Danessa Watkins (16:10):
And by the way, like most often when new
legislation gets passed, it'sit's not retroactive. Like Yep.
That is that is the standard.Like it's only gonna be forward
looking because you can'tpossibly hold somebody, whatever
it is, criminal, civil,whatever. You can't hold them
responsible for something thatwasn't on the books at the time
they did what they did.
Mhmm. Because people willobviously, you know, more more
(16:33):
often than not act a certain waybased on what they know the
consequences are. So
Jack Sanker (16:37):
Yeah. And like I said, I mean, this can be
remedied going forward byfederal circuit court judge
setting the bond at a dollar.You know?
Danessa Watkins (16:44):
Sure. Sure.
Jack Sanker (16:44):
That still complies with Yeah. Rule 65 c. And that
still jives with, like, youknow, what's contemplated by
this provision that's tuckedaway in the spending bill. Mhmm.
Mhmm.
My producer Kevin just askedwhether the court can
retroactively require a bond ona TRO that's already been
(17:06):
ordered. I have no idea. That'sa I mean, that's a good
question, but I really don'tknow. But I would say it
wouldn't matter because, like,if this law is passed tomorrow,
there's no bond at the at thetime that the order was entered.
And that's what the
Danessa Watkins (17:18):
Oh, okay.
Jack Sanker (17:18):
That's what the new law says. Yeah. So you cannot
enforce this via the court'scontempt powers. So so here's
kind of to add more meat ontothis bone. I'll go I'm quoting
back from the piece by professorErwin Chemerinsky.
(17:40):
Quote, federal courtsunderstandably rarely require
that a bond be posted by thosewho are restraining
unconstitutional federal, state,or local government actions.
Those seeking such court ordersgenerally do not have the
resources to post a bond andinsisting on it would immunize
unconstitutional governmentconduct from judicial review. It
has always been understood thatcourts can choose to set the
bond at zero. Recent temporaryrestraining orders and
(18:03):
preliminary injunctionsillustrate this. For example,
federal chief judge JamesBoesburg issued a temporary
restraining order presentingindividuals from being flown to
maximum security prison in ElSalvador without due process and
ordered that Judge Boesburgfound the federal government
willingly disregarded.
Federal Judge Paula Zanis issuedorders affirmed by the Supreme
(18:23):
Court to have Kilmar, AbregoGarcia brought back from El
Salvador since he was takenthere, the one country in the
world that an immigration judgeruled he could not be removed to
without due process andaccording to a government lawyer
by mistake. Federal, courts,including the Supreme Court,
have issued orders preventingthe Trump administration from
using the Alien Enemy Act of1792 to deport more people to El
(18:47):
Salvador without basic dueprocess safeguards. It would
make no sense to require theplaintiffs in these suits to pay
bonds, to be able to have accessto federal courts, unquote. So,
yeah, I mean, the the thing thatjumps out here is that it's you
know, in addition to all ofthat, which is this is, you
know, effectively a tax onpeople that wanna use the
federal courts to protect theirtheir claim constitutional
(19:09):
rights Mhmm. Is that it's it'sretroactive.
You know, so previous standardcourt orders, restraining
orders, injunctions, in manycases, the judge did not require
the litigate to post thesecurity would be invalidated.
I'll go back to the piece here.Quote, because federal courts
rarely have required plaintiffsto post bonds, it would mean
that hundreds and hundreds ofcourt orders in cases ranging
(19:32):
from antitrust to protectionfrom private tax information to
safeguarding the Social SecurityAdministration to school
desegregation to police reformwould be rendered unenforceable.
Even when the government hasbeen found to violate the
constitution, nothing could bedone to enforce the injunctions
against it. In fact, thegreatest effect of adopting the
provision would be to makecountless existing judicial
(19:53):
orders unenforceable.
If enacted, judges will be ableto set the bond at $1 so that it
can easily be met, but allexisting judicial orders where
no bond was required wouldbecome unenforceable, unquote.
Danessa Watkins (20:07):
She's like, sitting here mind blown.
Jack Sanker (20:10):
Yeah. I mean, and is this going to be what's in
the final bill that gets throughthe senate? I have no idea. Like
I said, the the folks in thehouse did not seem to grasp what
this meant. I mean, even, youknow, as we sit here reading
this, it's you have to think tothe second and third order
(20:31):
effects of this, which areintentional.
I mean, that's Right. You wouldnot make it retroactive if you
didn't intend to invalidateorders that already existed.
Danessa Watkins (20:39):
And Yeah.
Jack Sanker (20:40):
That's the point.
Danessa Watkins (20:41):
Because, yes. Yeah. Say, again, legislation,
if it doesn't say one way oranother. It always is assumed
not to be retroactive becausethat's such, like, an extreme
position to take.
Jack Sanker (20:52):
Yeah. So the piece goes on to talk about, you know,
the kind of standard dispositionof the Supreme Court, which has
historically supported federalcourts' contempt powers. And
there has been attempts byCongress to limit contempt
powers in the past. For example,in 1924, the Supreme Court
(21:16):
indicated that it would beunconstitutional for Congress to
require courts to hold a jurytrial before a party could be
held in civil contempt violatinga judicial order. That's so the
congress was trying to or was inthe process of adding a jury
trial component onto a civilcontempt order, and the supreme
(21:38):
court said that would beunconstitutional.
So by the way, for those whodon't know, courts have pretty
broad contempt powers.Typically, it's to enforce
orders. The court enters anorder, and if you disobey it,
the court can do all kinds ofthings under their contempt
powers from fining you certainamounts to locking you up. I've
been in court when someone
Danessa Watkins (21:58):
has been I thought you were gonna say, I've
been locked up.
Jack Sanker (22:02):
No. I I've I've been in court when someone else
was being threatened with
Danessa Watkins (22:06):
Really?
Jack Sanker (22:06):
Yeah. It's a pretty won't talk Federal?
Danessa Watkins (22:09):
No. Really?
Jack Sanker (22:10):
Local. With someone who you might guess, but I will
we're not gonna talk about it onair.
Danessa Watkins (22:17):
Nah. I may know what you're talking about. Yep.
Jack Sanker (22:19):
And but in so far as, you know, like the the folks
I mean, if if you've, like,watched, like, judge Judy,
there's, like, the, you know,just, the bailiff and he's,
like, part of the TV show.Right? But there is that person
in real court too. Oh, yeah.And, like, that person
Danessa Watkins (22:32):
At least one.
Jack Sanker (22:33):
Yeah. That person has, like, handcuffs Mhmm. And
can slap them on you in court ifordered to do so. You do not get
a trial. Like, you don't youdon't have limited, like,
there's there's limited dueprocess when it comes to
contempt Right.
Powers of the court. So it's,you know, in the judge's
discretion, did you violate myorder? Yes or no. If so, here's
(22:53):
the consequences. Right?
That's like it's it's very rarefor people to be put in prison
for it, of course. But, like,fines and things like that, I
mean, I've seen it happen wherethe court will be like, you're
late on X, Y and Z document thatneeded to be filed. I'm going to
fine you $100 a day
Danessa Watkins (23:12):
Right.
Jack Sanker (23:12):
Until it's filed. I mean, that's a sanction thing as
well that's a different
Danessa Watkins (23:17):
But it is because you violated a court
order. Mhmm.
Jack Sanker (23:20):
So the court will just say
Danessa Watkins (23:21):
Until you comply. Yep.
Jack Sanker (23:23):
So it's usually, like, monetary stuff. Mhmm. It
is it's not often that they're,we're putting you in jail for
this stuff. But, like, it it ison the table. It's they were
able to do that.
Yeah. That has happened. Thereare instances of that happening.
This whole policy of, you know,we're going to try to use the,
(23:45):
the bonding requirements offederal rule 65 c, to kind of
tamp down challenges tospecifically immigration stuff.
It's it's shown up in otherplaces from this administration.
Previously, the White Housedirected the Justice Department
to ask the courts to requirechallenges to postpone when an
(24:08):
injunction was issued, which isin their rights to do. Mhmm.
That has not been the case, hasnot been standard practice. But
now, if you're, say, animmigrant who doesn't want to be
sent to die in a prison in ElSalvador, the Justice Department
is going to say, I want thecourt to require a bond under
the applicable federal rules.
Danessa Watkins (24:27):
Sure.
Jack Sanker (24:28):
Right. So that is something that was new, but
it's, like, broadly within theplaybook that already existed.
It was uncommon, but it existed.And now Congress just wants to
take away the discretion ofwhether or not, you know, it's
going to be required in thefederal judge. And, of course,
undo all of the orders that wereentered without there being a
(24:49):
bond, which is, I think, thebigger story.
So this now goes to, you know,senate. Who know? I mean,
there's a lot of horse tradingthat in this process. I mean,
I'm not, like, you know,legislative expert. I'm not a
legislative attorney.
I have no experience working ingovernment. But, generally, this
(25:13):
you know, what goes from thehouse to the senate, the version
that gets passed is can be verydifferent. It was a one vote
margin in the House. The Senate,the margin is also very tight,
you know, along the bipartisanlines. But, you know, typically
(25:34):
senators are a little betterinformed than your average house
representative.
So, like, they may know moreabout this, especially as people
are talking about it. Mhmm. Sowho knows? I mean and by the
way, like, unless you have alist of all orders that were
entered where there's no bonds,as we sit here now, we have no
idea
Danessa Watkins (25:51):
How many. Yeah.
Jack Sanker (25:52):
What's going to be done by this. So, like, the
administration's like, great. Wecan, like, you know, we can go
ahead and put these people in ElSalvador and without fearing
contempt, you know, from thecourt. But, like, you have no
idea what other Right. You know,government agencies
Danessa Watkins (26:07):
Mhmm.
Jack Sanker (26:07):
Or private actors
Danessa Watkins (26:08):
Mhmm.
Jack Sanker (26:09):
Are operating under a TRO and will wake up tomorrow
if this is passed and be like, Idon't have to listen to it
anymore. Yeah. And, like, so itcould be quite chaotic for big
companies, for people concernedwith civil rights and all sorts
of things. It's, I mean, it'sinteresting. And I like that
list of like, you know, if youwent to PACER, which is the
(26:30):
federal court document filingand management website, and
wanted to pull up everypreliminary injunction that's
been entered in the past, Idon't know, ten years, how many
do you think there are?
Danessa Watkins (26:41):
Right.
Jack Sanker (26:42):
Thousands?
Danessa Watkins (26:43):
Yeah.
Jack Sanker (26:43):
Yeah. So and then how many of those are still on a
temporary basis? Because thisdoesn't apply to permanent
injunctions. Sure.
Danessa Watkins (26:50):
I don't know. Litigation lasts years and
sometimes those injunctions lastthe whole time.
Jack Sanker (26:54):
Yeah. Yeah. So and like then then sort those by how
many of those were bonded. So Ihave no idea what would happen
if this actually gets passed.But it's, I mean, it's pretty
wide.
It's it's pretty Mhmm. You know,whatever. That's Now
Danessa Watkins (27:08):
that okay. So now that I'm thinking because
I'm like, I know I've beeninvolved in TRO things before
where there were sizable assets.Now I remember. And there was a
bond required. It was a caseinvolving airplanes and a fight
between who owned the airplanesessentially.
Mhmm. But because that's such amovable asset and could, you
know, kinda disappear
Jack Sanker (27:28):
Yeah.
Danessa Watkins (27:28):
Or be disassembled or, you know, it's
it's different than, you know, amoney asset or something,
although I guess money candisappear too. But, yeah, there
there was an injunction that wasentered and I do recall now that
our client had to put up a bondfor it. Yeah. Yeah.
Jack Sanker (27:43):
Yeah. And there's other things too. Mean, you you
you get bonds for appeals. Youget all sorts of things like
that. But, you know, this is avery, like, in the trenches,
like, in the fine print tweak tothe existing system that could
have, you know, pretty dramaticresults if it's passed as is.
(28:05):
And politically, it's, you know,it's very likely motivated by
immigration policy concerns ofthe administration. I think the
folks responsible for passing ithave so much as said so, that
it's meant to they say that it'san attempt to tamp down on what
(28:25):
they call like frivolouslitigation Mhmm. And also to
curtail the injunction powers ofthe circuit courts of the the
federal districts. So, yeah,we'll see if this makes it
through the senate into thefinal bill. Even if they removed
the post or or even if theyremoved the, the provision
(28:46):
which, you know, makes it applyretroactively, going forward,
it's still, I mean, you know.
Danessa Watkins (28:53):
Yeah. But I'm okay with it. If I would be
okay. I I think it's areasonable
Jack Sanker (28:58):
Sure.
Danessa Watkins (28:58):
Bill if you remove the retroactive. That's
the part that I'm like
Jack Sanker (29:02):
Well, well, if you remove the retroactive party to
accomplish, it's nothing becausethe court can the court can just
have
Danessa Watkins (29:07):
the bond as a dollar. That's why I'm okay with
it.
Jack Sanker (29:09):
Right. Yeah. Yeah. But I mean, there's no point to
it if it's not retroactiveunless unless, you know, people
are concerned about the courtbeing able to collect $1. Right.
And then to then
Danessa Watkins (29:17):
Well, I mean, are and that's that's making an
assumption though, right, aboutthe judge. You're not always
gonna get judges that are, youknow, that are sympathetic to
people bringing constitutionaltype claims. So I mean But we
already have the rule in placethat would Yeah. So
Jack Sanker (29:36):
Yeah. I mean, so it it's just it it would be a weird
it's a weird box to open.
Danessa Watkins (29:42):
I just also I think that more often and I
don't know the statistics onthis. This is just based on like
my assumptions, I guess. So, youknow, take it for what it's
worth. But I would think thatthis is gonna affect private
citizens and businesses Sure.More than it's ever gonna
benefit the government.
Like, think the amount of, like,probably current injunctions and
TROs against the government isway less than it is against
Jack Sanker (30:05):
It's it's
Danessa Watkins (30:06):
private citizens and businesses.
Jack Sanker (30:07):
Yeah. Certainly. It's going to be like, again,
all those things we mentioned,like intellectual property and
Mhmm. Business tort and all thatstuff. Right.
These things happen all thetime. Right. Like I said, people
are gonna wake up tomorrow andrealize, like, if I violate this
court order, there's nopossibility of me being held in
contempt. Yeah. So why wouldn'tI just violate the court order?
Exactly. You know? I mean, youcould still get, like, you could
still have a negative finding aton the merits at trial. Right?
(30:31):
You could still, like, be youknow, if you're being sued for,
you know, IP.
Danessa Watkins (30:36):
Yeah. But the damage may be done by then.
Jack Sanker (30:38):
Yeah. But you right. Yeah. Exactly. Which is
the whole point of TROs andpreliminary injunctions is to
avoid that.
Mhmm. So, yeah. I mean, it'sit's yeah. It it basically I
mean, it it would cause like, itcould cause absolute mayhem.
It's interesting.
I mean, it's one of those thingsthat, like, doesn't really make
the headlines, especiallyregarding the spending bill,
(31:01):
everything else that's in there,etcetera. But our little neck of
the woods over here.
Danessa Watkins (31:05):
Yeah. Good find.
Jack Sanker (31:06):
Yeah. It's kind of an important one.
Danessa Watkins (31:08):
So Sneaky.
Jack Sanker (31:08):
There. Yeah. So we'll see if it gets passed.
We'll see what version of itgets passed. And if there's
anything worthwhile to come outof that, we'll let everyone
know.
Danessa Watkins (31:24):
Okay. So this what I'm gonna talk about here,
it's become a hot topic in ourcourts over the past few years.
And it's a situation where wereally have two different
interests at play that that needto be balanced. So one is the
presumption that the public hasa right to access judicial
proceedings, and that includesknowing who the litigants are.
(31:45):
But then on the other hand,people may have legitimate
reasons for wanting to bring alawsuit anonymously to prevent
further harm to themselves.
Well established, I think whatcomes to mind most frequently is
the protection of minors. So wesee cases that are filed using
only the minors initials, forexample, or they can just simply
(32:07):
be named as a Jane Doe or a JohnDoe. And we've also seen
pseudonyms traditionally allowedwhere people can show that for
whatever reason, revealing theiridentity in the lawsuit is going
to subject them to a substantialrisk of harm or some sort of
retaliation from a third party.But courts have now taken a
(32:28):
stance, and this is in recentyears, and they've determined
that the avoidance ofreputational harm or
embarrassment is not acompelling enough basis to file
under a pseudonym. So in otherwords, like the public's
interest in an open judicialprocess, that's gonna outweigh a
litigant's right to preservetheir reputation.
So, this issue is obviously ofinterest to me because it kind
(32:52):
of tears me in two directions.My practice is dedicated both to
freedom of the press, so thefree flow of reporting on public
information, but I alsoregularly assist clients in
reputational preservation. Sothere have just been times when
we've had to counsel clients andwe've talked about this in the
(33:13):
show as well. You know, you havea valid defamation claim. What
was said about you wasabsolutely not privileged and
you were harmed.
But if you file this lawsuit,you need to understand that
you're amplifying that false anddefamatory message. Mhmm. It's
gonna now reach people that itwouldn't have reached otherwise.
Jack Sanker (33:31):
Is it the Streisand effect? Is that yeah. Where it's
like you familiar with this?
Danessa Watkins (33:35):
No.
Jack Sanker (33:36):
Oh, yeah. It's by talking about the thing you're
not supposed to talk about, youare making people more aware of
it.
Danessa Watkins (33:42):
Oh, okay. Well, yeah. So that's exactly it.
Yeah. So, yeah.
I mean, it's a hard it's a hardbalance and I see definitely
both sides of the issue. Wedon't wanna preclude people from
righting wrongs simply becausethe harm of going through with a
civil lawsuit is is too great.But then, you know, putting my
(34:04):
defense attorney hat on which Iwear more often, it's like, hey,
plaintiff, you know, decide howmuch this case is worth it to
you. I guess the idea of havingyour name on a public filing and
then going through discovery onmatters that deal specifically
with your reputation, you know,that that could prevent a lot of
people from filing what wouldotherwise be meritless lawsuits
(34:26):
They just don't wanna openthemselves up to that. So the
recent decision that just cameout of the Seventh Circuit on
this issue, it came out in Marchof twenty twenty five.
It's John Doe versus MariahYoung among others. And mister
Doe filed a lawsuit against theUniversity of Illinois or
(34:51):
different professors andadministrators at that
university. So what happenedwith him is he was investigated
and then ultimately dismissedfrom the school for sexually
assaulting another student. Hisclaims are that the university's
(35:12):
investigation was discriminatoryand violated his right to due
process. So he initially filedthis motion with his complaint
asking to proceed under apseudonym.
The defendants at the time, sothe university officials, they
didn't object to it. But thenwe've had these recent decisions
come down in cases similar tothis where the Seventh Circuit
(35:36):
has said you don't have a rightto file under a pseudonym. So
once those there are two inparticular that came down last
year. Once those came out, theuniversity changed its tune and
said, you know what? Actually,we do object to proceeding under
a pseudonym.
I think probably for the samereasons that I mentioned that,
you know, once you kind of takethat mask off, it it may change
(35:57):
things for you. You may notwanna continue with this lawsuit
Yeah. For example. So John Doe,when he was a student at the
university, he and I I didn'tlook up the specific facts, so
I'm just kind of going off ofthe summary. I think probably
the specific facts are importantbecause it seems a little a
(36:18):
little weird how they'redescribing it.
But he and a fellow studentwhose name just happens to be
Jane Roe. Okay. Or maybe that'swhat they're I think that has to
be what they're applying to her.They're not saying that's a
pseudonym, but I have to imagineit is. They're not calling her a
Doe because she's not a party tothe case.
So they're saying Roe. Mhmm.Okay. So miss Roe, she had filed
(36:41):
a complaint under Title IX withthe Office of Student Conflict
Resolution accusing John Doe ofunwanted touching while the two
were visiting Nashville. Now,say that like with a question
mark and I wonder what the realfacts were because I don't
understand how that ties to theuniversity.
Yeah. Would seem you know what Imean? If if there was some
(37:02):
unwanted touching that occurred,you would think that'd be just
be a criminal matter. I'm notsure how the
Jack Sanker (37:06):
All touching in Nashville is unwanted.
Danessa Watkins (37:08):
I'm sorry.
Jack Sanker (37:09):
If you've ever been.
Danessa Watkins (37:10):
Valid point. But for whatever reason, she
brought it to the university andand they investigated it and
found Doe to be culpable,charged him with sexual assault
as well as drug manufacturing,sale and distribution because
apparently Doe and Rowe ingestedmolly during this whole
(37:32):
incident. So Doe appealed. Hewas denied and then, as I
mentioned, was dismissed fromthe school. So he claims that
the university, subjected him torace, gender, and disability
based discrimination.
He has a visual impairment and alearning disability and failed
to give him the due process thathe deserved. He also brought a
(37:55):
breach of contract action, whichI thought was interesting. Doe
represents himself as a blackman. He represents Ms. Rowe as a
white woman.
And he is claiming that byfiling this lawsuit and
discussing the details of theirinteractions, that creates a
(38:17):
risk of substantial harm to himbecause, according to him,
interracial sexual relationshipsbetween white women and black
men are the subject ofheightened prejudice and violent
responses that create a tangiblerisk of retaliation and animus
against him. That's a quote fromthe Seventh Circuit decision.
He, of course I mean, there's aplethora of of things from our
(38:41):
history, including case law,actually, as recent as 2022,
that notes that, yes, this thisprejudice exists. There's a
history of It is it is aprevalent issue and something
that courts take seriously.However, our district court, our
Central District Of Illinois, aswell as the Seventh Circuit
(39:03):
found that Doe did not contactexcuse me, connect his current
circumstances to this thesehistoric injustices.
So, yes, we recognize thathistorically this has been an
issue, but you have not shownus, mister Doe, how you
personally are subject to, youknow, harm or the likelihood of
(39:26):
harm by revealing your identityin this case. They the court
cited to a Seventh Circuitdecision where the litigant who
filed as a Doe did meet thatbecause they showed that they
personally had been subject toto hate crimes and violence
because of their religion. So ingoing forward with a religious
(39:50):
based claim, they wanted toprotect their identity and the
court was like, yeah, that makessense here. But for mister Doe,
he did not meet that threshold.
Jack Sanker (39:59):
I see. So it's not connected to his inner the
claims that he's bringing arenot sufficiently connected to
his interracial marriage suchthat that could be the reason
for his anonymity with respectto this claim.
Danessa Watkins (40:09):
Right. He hasn't Yeah. So the court and
the court went so far as towelcome comment from Ms. Roe and
said, you know, we wanna hearfrom you. If, mister Doe's
identity is revealed, does that,make it more likely that you are
gonna be found out?
That you're gonna be identifiedas the sexual assault victim?
(40:31):
And she wrote to the court andsaid, I have no concerns about
that.
Jack Sanker (40:34):
Shouldn't have done that if that's
Danessa Watkins (40:35):
Well, I think that obviously worked against
him because the court goes togreat lengths to to protect
sexual assault victimsespecially if they're not a
party to a litigation. So Ithink if she had legitimate
concerns, then probably thecourt would have allowed it. But
so yeah. Anyways, this his hispetition got got overturned and
(41:01):
the court reversed his right tofile as a doe. The seventh
circuit sent it back down to thedistrict court and said, he can
proceed with his case but heneeds to reveal his identity.
Jack Sanker (41:15):
Right. So To the public by the way.
Danessa Watkins (41:17):
To the public needs to refile his complaint
with his real name Yeah.Essentially.
Jack Sanker (41:21):
The the one thing just because I mean I don't I'm
not in this area of law, but I II know this but the the audience
like may not. The and this isnot a situation where the
identity of the claimant iswithheld from the defendant or
from the court. Correct. So thethe court and the defendant both
know who this person is. It's asituation where the name is
withheld from the public filing.
(41:42):
So it's, you know, it's not asthough you're being sued by
someone that and you're notbeing told who you're being sued
by.
Danessa Watkins (41:46):
Right.
Jack Sanker (41:47):
So yeah. Just point of clarity.
Danessa Watkins (41:48):
Yeah. Exactly. And if there were, if there was
anything that was gonna be filedwith the court that had his name
in it, that would be redacted.It's essentially just
Jack Sanker (41:58):
Not like an anonymous lawsuit.
Danessa Watkins (41:59):
Right. Right. Yep. So this case goes back down
to the district court and I hadto look up the pacer just to see
what was going on. So on April22, the district judge entered
an order saying, John Doe, youhave until May 5 to reveal your
name.
Otherwise, your case will bedismissed. That deadline came
(42:21):
and went. May 6, the judge gavehim one final chance, you know,
reveal yourself. Or by May 12,this case will be dismissed.
Again, nothing.
So on May 14, a dismissal wasentered without prejudice, for
failure to follow the SeventhCircuit order.
Jack Sanker (42:38):
Okay.
Danessa Watkins (42:39):
So he could still decide to refile his case
under his own name.
Jack Sanker (42:43):
Within the statute.
Danessa Watkins (42:44):
Yep. But I think that's, you know, that's
interesting. So, you know, he henow that he can't have this
shield is not gonna pursue hiscase.
Jack Sanker (42:52):
Right.
Danessa Watkins (42:53):
Which, you know, I don't know the
background facts. I don't know,you know, if that should be a
judgment about the merits of thecase or not, but it is just Or
Jack Sanker (43:01):
it proves his point, which is Yeah. I I'm too
worried about the consequencesof this that I've I've decided
against pursuing my rights underthe lawsuit.
Danessa Watkins (43:08):
Exactly.
Jack Sanker (43:08):
Yeah. Or like you said, it could be it could show
that the case is not very Yeah.
Danessa Watkins (43:13):
Yeah. We can't we can't really say one way or
another. But so this, this issuedefinitely, is something I've
dealt with in my practice and, Ican't get into, you know, the
details of cases. But just oneexample of how how rulings like
(43:34):
this can affect people, and whyI don't think it should be a
blanket rule that, you know, youcan only file under a pseudonym
if you're a minor, a sexualassault victim, or, you know,
some other category. We had a adefamation case where this
person's life was, like,destroyed.
I mean, destroyed by this otherperson. They put out fake
(43:58):
Instagram accounts, fakeLinkedIns, you know, sent
messages. Were Yes. Likeaccusing him of crimes, you
know, sending what would be, youknow, considered private
pictures and videos to like hisbosses and just I mean like this
went on for years and finallygot to the point where the
(44:20):
person had enough and wanted tofile a lawsuit which included, a
defamation claim. And but, youknow, as much as all like hit
all of his immediate communityand, you know, to the extent
some of his extended communitywas affected by this, it doesn't
mean that the whole world knewabout it, you know.
And so to his point, was thereare people who have never seen
(44:44):
these accounts, who would neverknow about this, who would never
see these pictures of me unlessI file this lawsuit. Mhmm. And
so we went, you know, with awith a John Doe And it's like,
all was good until out ofnowhere, a professor intervened
in the case and took a positionthat under the First Amendment,
(45:06):
he had a right to know who JohnDoe was. This was someone who
lives thousands of miles away,had absolutely no, you know,
nothing to gain from the case.But then I started looking into
it and this this happens acrossthe country where people
seemingly having no interest inin a case will intervene.
Jack Sanker (45:26):
Nothing better to do.
Danessa Watkins (45:27):
I I'm just like, what yeah. Like, what are
you gaining from this? You know,like, let the defendant make the
argument that that someoneshouldn't, you know, proceed
under a Jane Doe or a John Doe.But it happens and, you know,
again, I'm a defender of theFirst Amendment but sometimes
it's like, stay in your lane alittle bit. So yeah.
(45:52):
Interesting and I guess it justlike serves as kind of another
warning. Like you really gottathink about what's at play if
you're gonna file a lawsuit andyou can't just assume that your,
you know, your right to proceedunder a pseudonym is gonna be
upheld.
Jack Sanker (46:08):
Right.
Danessa Watkins (46:09):
You gotta think like judges understand the
importance of keeping theirrecord open to the public. So if
they do, under the rarecircumstances, allow for
something to be sealed or allowfor someone to proceed
anonymously, then, you know,that's a well thought out
decision. But, yeah. I don'tknow. If you have if you have
time on your hands and wannajust start scouring for Jane Doe
(46:29):
and John Doe's and intervene,then, you know, have at it.
Jack Sanker (46:33):
Yeah. I and the particular individuals that are
doing this, I mean, it's it'snot like easy or cheap even to
like intervene in a federallawsuit in a well different, you
know Yeah. Jurisdiction orwhatever. Right. So they're
motivated people.
Danessa Watkins (46:47):
For sure.
Jack Sanker (46:47):
That's fascinating.
Danessa Watkins (46:49):
Mhmm.
Jack Sanker (46:50):
Alright. Thanks, everyone. That's the show. As a
reminder, you can hear us, everytwo weeks on Apple Podcasts,
Spotify, YouTube, wherever youget your podcasts. Otherwise, we
will talk to you soon.
Welcome to Litigation Nation. I'm your
host, Danessa Watkins, here withmy cohost, Jack Sanker. As a
reminder, this is the show whereevery two weeks, we'll give a
wrap up of the new and excitinglegal news from across the
country. What are you gonnashare with us today, Jack?
Jack Sanker (00:20):
The new tax and spending bill that just passed
the house today actuallycontains a pretty severe
limitation on the federal courtcontempt powers to enforce
injunctions and temporaryrestraining orders, could have
wide ranging implications. Thisis gonna tie into the overall
immigration fight that'shappening. But it also is a big
land landscape change for anyonethat litigates a federal court.
Danessa Watkins (00:43):
Got it. Excellent. Alright. And I'm
going to cover the seeminglyrecent push to preclude
litigants from filing lawsuitsunder a pseudonym. So like Jane
Doe or John Doe, to protecttheir privacy interests.
So all that and more, here'swhat you need to know.
Jack Sanker (01:05):
Tucked away in the federal spending bill that just
passed the house by a one votemargin today, and today is May
22, is a seemingly innocuousprovision that, if passed by the
Senate, will severely limitfederal court's abilities to
enforce temporary restrainingorders and injunctions. The
(01:26):
provision reads from the bill,quote, no court of the United
States may use appropriatedfunds to enforce a contempt
citation for failure to complywith an injunction or temporary
restraining order if no securitywas given when the injunction or
order was issued pursuant tofederal rule of civil procedure
65 c, whether issued prior to,on, or subsequent to the date of
(01:48):
enactment of this subsection,unquote. For the analysis of
this provision in the bill, I'mgonna be relying on an article
published, on justsecurity.org,is by a Berkeley School of Law
professor Irwin Chemerinsky. Andthe provision in this new bill
(02:09):
is is relying on and referencesfederal rule 65 c, which says,
kinda generally that judges canissue temporary restraining
orders or preliminaryinjunctions only if the party
seeking the TRO or theinjunction provides a, quote,
security in an amount that thecourt considers proper to pay
the costs and damages by anyparty found to have been
(02:30):
wrongfully enjoined orrestrained, unquote.
So what is what is the purposeof federal 65 c, which already
exists, by the way? It's so thatif someone is enjoined via a TRO
or a preliminary injunction, andthen it turns out that the entry
(02:51):
of those orders was wrong andthey get reversed or overturned,
the party who was enjoined orwas subject to the restraining
order can recoup whatever coststhey incurred as a result of
this. Temporary restrainingorders and injunctions,
preliminary injunctions, arekind of they're pretrial
remedies that a court hasreally, really strict latitude
(03:15):
to enforce. I won't get into thespecific, like, four or five
factors that a court has to gothrough, but basically, it's a
way for a litigate to show up incourt and say, listen, There's
ongoing harm that's happening tome that the defendant is doing
in one way or another. It'shappening right now.
You have to satisfy a number ofdifferent factors, and the court
(03:36):
will say, listen. Based on whatyou've shown so far at this very
early point in the litigation,I'm going to enjoin the
defendant from continuing hiswhatever they were doing. I'm
gonna temporarily put a stop toit. And or if it's a temporary
restraining order, it's, youknow, we're going to stop
whatever else it was they weredoing. This comes up in a dozen
(03:56):
different areas of law prettycommonly.
Danessa Watkins (03:57):
Like the idea is, let's preserve the status
quo while we figure out what'sgoing on So
Jack Sanker (04:02):
like, in my experiences, it comes up quite a
bit in like intellectualproperty litigation, things like
that. Like if you're infringingon my trademark, for example, or
any of my IP, like, yes, we'regoing to have a trial on that
down the road where we figureout whether you actually did or
didn't. And we're going to dodiscovery on that. And that
process is going to take, know,years or whatever. But in the
meantime, you're still doing itover those many years, and you
(04:26):
could hurt me so badly that myintellectual property becomes
worthless by the time we get totrial.
Mhmm. So I'm gonna ask the courtto stop you now on a temporary
basis and, while we sort thisout. And a court can decide to
do that or not. So so 65 c,allows the court to require the
party seeking the injunction ofthe TRO to to provide a
(04:50):
security, which is in form of asurety bond, is think of it like
a mini insurance policy that thebondee, which is the person who
is seeking the injunction, hasto get, and has to, purchase
from a surety company. I'll talkabout this process a little bit
later.
(05:10):
That basically sets aside a potof money so that if it turns out
that the injunction wasincorrectly ordered by the
court, the party that waswrongfully enjoined can get
back, you know, whatever it isthat they lost. So using my
intellectual property example,if, you know, a party is, like,
selling something that's basedon the intellectual property or
that's allegedly based on theintellectual property of someone
(05:31):
else, they're enjoined fromselling those things during the
course of litigation. The costthat they would have incurred as
a result of that injunctioncould be calculated as the sales
that they lost. Like, weren'tallowed to keep selling their
thing. Turns out that they wereright all along.
Danessa Watkins (05:46):
So in this process, is it the defendant or
the party that's going to beenjoined? Are they the ones that
would typically say, you know,judge, we need a surety in this
amount? This is what weanticipate our losses would be?
Jack Sanker (06:01):
The court sets a actually, you know, we'll just
do that part now because I havea kind of a breakdown of how the
surety bond process works. And Ithink it's useful because it's
even, you know, people thatlitigate for a living don't
necessarily go through this.
Danessa Watkins (06:17):
I was gonna say,
Jack Sanker (06:18):
I didn't even
Danessa Watkins (06:19):
know this was part of this.
Jack Sanker (06:21):
Yeah. Yeah. Yeah. So like, so like, what I'll
start with, like, what are courtbonds? You know, what are surety
bonds?
They're They're securities thatlitigants have to provide to the
court. I think I mentionedbefore, you could think of them
like a mini insurance policythat you buy to insure against,
you know, an outcome where theother side is damaged
wrongfully. The litigant has togo to a bond, go get a bond from
(06:44):
an approved surety company, theyhave to apply for the bond. The
application process is based on,you know, on a lot of different
factors such as the bond amount.The bond amount is set by the
court.
So that's the overall money thathas to be bonded, which is, you
know, again again, can becalculated as, like, what are
the damages that the litigantmight suffer. In the case of an
(07:09):
injunction against thegovernment, which I'll get back
to you, but this is really whatthis new legislation is really
all about, I think. The bondamount, must cover the cost of
the injunction, if the if it'slater reversed, costs of
temporarily stopping a nationalpolicy such as, like,
deportation, something likethat. I think and I haven't been
(07:34):
down this road myself as alitigator. It's not the type of
law I do.
But I think it could, you know,ostensibly involve, like, paying
federal law enforcement or,like, airline tickets to, you
know, sending folks away todifferent countries, things like
that. I imagine that the costsof that the government could
claim they they were entitled toin the event that they were
wrongly enjoined could be quitehigh. Mhmm. But in like
(07:56):
traditional like contract casesor IP stuff or whatever, like in
the examples I gave earlier,like sales or things of that
sort, you know, that those aregonna be up for consideration by
the court when it sets the bondamount. So the application so
the applicant, which is theplaintiff who wants the
injunction, has to apply for thebond, the surety company
assesses the the final positionsorry, the financial position of
(08:17):
the bondee, the applicant.
So like their credit score,liquid assets, and then sets a
bond premium that has to be paidby the bondee. So that's the fee
that the bondee has to pay tothe surety company to provide
the bond, which then gets filedwith the court. Obviously, the
worse your, you know, credit orfinancial situation, the more
(08:39):
expensive the premium for thebond will be just like anything
else. That's obviously going tobe very relevant in the case of
undocumented immigrantschallenging immigration orders.
Right.
They're probably, you know, wecan assume quite poor. The bond
gets filed with the court in theevent that the TRO or the
preliminary injunction isoverturned. The defendant and,
like, in an immigration matter,that means the government can
(09:00):
recoup their costs via the bond.So how much do bonds, like,
typically cost for, I would say,you know, my in my experience,
and I I looked a little bit, dida little research on this, you
know, typically, like, you know,this happens a lot in contract
cases or, like, even, like,mechanics lien cases or
whatever. It's like somewherebetween one to 10% of the total
(09:23):
bond and amount.
For extremely poor folks, that'sprobably going to be either be
much higher or they just won'tqualify for one. Right? Which
means they can't provide a bondto the court, which means they
can't get a preliminaryinjunction or a TRO based on
this new legislation.
Danessa Watkins (09:40):
Oh, okay. So currently, there's probably some
provisions that allow for, like,like when you can apply to the
court to waive, you know, courtcosts because you you can show
that you don't have the the forthem.
Jack Sanker (09:51):
And another caveat is that the the courts have
latitude to set the bond out,like, at a dollar. Right? They
they can say the bonded amountis a dollar here. Got it, okay.
So like we're, you know, youdon't, you you pay a dollar and
you get what you want, right?
Got it. So the court, even underthis new legislation, the courts
will have that. We'll still beable to say the bond amount is a
(10:13):
dollar. Okay. And thatdiscretion of setting the bond
amount has not been changedunder this new legislation.
However, it is the practicewidespread among federal judges
to not require bonds insituations where the party
that's going to be enjoined isthe federal government.
Danessa Watkins (10:33):
Okay.
Jack Sanker (10:34):
So if you're seeking a TRO or to enjoin the
federal government from doingsomething that is
unconstitutional or violatesyour rights, you would You
typically are not required toprovide a bond to the court.
That's the standard practicethat is most widespread. There's
examples on both sides of it,it's pretty common. Especially,
(10:56):
again, in a situation where yourconstitutional rights are being
infringed and a hundreddifferent things you could think
of, civil rights cases. And in,know, what we're gonna talk
about in a moment, immigration.
Danessa Watkins (11:13):
Okay. So this new legislation says the judges
are still gonna have discretionin setting the bond amount, but
they still but they have toabsolutely require a bond. There
is
Jack Sanker (11:23):
Well, the legislation says it's actually
it doesn't change the thecourt's, you know, requirement
or discretion, but what it saysis it's a little different. It
says the court, of the UnitedStates federal courts cannot use
appropriated funds to enforce acontempt citation for failure to
(11:45):
comply with an injunction or TROif no security was given when
the injunction or order wasissued. So Okay. I see. What it
does is if you got an injunctionor a TRO, and you did and you
were not required to provide abond because the court didn't
ask you to, at that point, Thislegislation will strip from the
(12:06):
federal judges the ability toenforce the TRO or the
injunction through its contemptpowers.
Danessa Watkins (12:15):
Okay.
Jack Sanker (12:15):
Yes.
Danessa Watkins (12:16):
Interesting.
Jack Sanker (12:17):
So the court can enforce the TRO and the court
can even and this is not even ascenario when, you know, the
other side is wrongfullyenjoined. They could be
rightfully enjoined Right. Inthis scenario. But the court
cannot enforce it, period, ifthere's no bond. Cannot enforce
it via their contempt powers.
Danessa Watkins (12:34):
And
Jack Sanker (12:35):
the really interesting part is the little
section at the end here. It sayswhether issued prior to, on or
subsequent to the date ofenactment of this subsection
prior to. So it's like it'sretroactive.
Danessa Watkins (12:49):
Oh, okay.
Jack Sanker (12:49):
Yeah. So of the I'll get back to the
Danessa Watkins (12:53):
So there so Yeah. Just to for a minute. So
just to break down what thatmeans. So there are probably, I
don't even know how many judgesout there who have Yep. Received
TROs Yep.
Because of this situation havenot required bonds. And then
now, if this new bill is it abill? Mhmm. If this new bill
(13:16):
goes
Jack Sanker (13:17):
This is the this is the like like the big beautiful
bill
Danessa Watkins (13:20):
that Okay. The tax part of that.
Jack Sanker (13:21):
Okay. Is the the reconciliation bill. This is tax
and spending bill. Got it. It'slike $6,000,000,000,000 bill or
whatever the heck it
Danessa Watkins (13:27):
is. Right. Right.
Jack Sanker (13:28):
Right. The big beautiful bill. Yeah. It and it
just it was just passed theHouse, so it goes to the Senate.
Danessa Watkins (13:32):
Right. Yeah. Okay. So if this bill gets
passed and signed
Jack Sanker (13:35):
Yeah.
Danessa Watkins (13:36):
That means that for all of those cases Yeah.
Where before this was evenintroduced Yes. There's a party
that is currently under a TROYeah. That defendant who is
prevented from doing whatever itis they're gonna do
Jack Sanker (13:50):
Yep.
Danessa Watkins (13:50):
They can do that thing
Jack Sanker (13:52):
Yep.
Danessa Watkins (13:53):
And they there's nothing the judge can do
about
Jack Sanker (13:55):
it Correct.
Danessa Watkins (13:55):
Yes. If that judge didn't require it.
Jack Sanker (13:57):
If there was no bond required. Yes. Which was
which is relatively commonpractice up until this point.
Danessa Watkins (14:03):
I mean, it's very confusing. Like, I I didn't
get it the first time you readit. And then when we started
talking about it, like, now it'scoming to me. So I'm It's
clever. Sure there are so manypeople that don't actually
understand how this is gonnawork.
And I hope those aren't thepeople that are voting on this
because
Jack Sanker (14:19):
It's well, that's a great that's a that's an
interesting point, because as Iwas looking into this, there
were, you know, debates in thehouse about this and there were
a number of legislators who didnot get it. Yeah. They like, no,
no. Bill actually just onlystrips from the federal courts
the ability to issue nationalinjunctions, which is a topic
(14:40):
that we talked about in our lastepisode that Yeah. Which I said,
by the way, was gonna becomeMhmm.
And I'm like, call my shot, youknow, was going to become a
major issue over the next coupleof weeks as circuit courts
around the country are enjoiningthe federal government from
doing, I mean, a lot of things,but in in particular, the the
deportation that's happening tothe El Salvador prison Mhmm. The
(15:01):
mega prison, you know, whatever.And so, like, rather than, like,
defend that on the merits of,like, this is, you know, legal
or it isn't or this particularindividual was rightly or
wrongly detained, the target nowis, well, Circuit Courts
shouldn't be allowed to do Theyshould only be allowed to, you
know, intervene on behalf of theone individual who has filed
that specific lawsuit. Theyshould not be able to join the
(15:24):
federal government from doingthis entire policy nationwide.
Danessa Watkins (15:26):
Mhmm.
Jack Sanker (15:27):
So that's like the bull's eye that this is seeking
in a roundabout way to get at.
Danessa Watkins (15:33):
Got it.
Jack Sanker (15:33):
Because now, you know, all of these district
court orders enjoining thosepractices or enjoining the
federal government's activitiesin that regard, more likely than
not, probably did not require abond. Yeah. And so to your
point, who cares what happensnext because they can't enforce
(15:54):
it via their contempt powers.
Danessa Watkins (15:55):
That's insane. Mhmm.
Jack Sanker (15:56):
So yep. So It's
Danessa Watkins (15:59):
just like I I feel like every day I'm just
like, what is happening? Yeah.Okay. Go. Sorry.
So
Jack Sanker (16:05):
let me go back to to the piece I was quoting from
earlier.
Danessa Watkins (16:10):
And by the way, like most often when new
legislation gets passed, it'sit's not retroactive. Like Yep.
That is that is the standard.Like it's only gonna be forward
looking because you can'tpossibly hold somebody, whatever
it is, criminal, civil,whatever. You can't hold them
responsible for something thatwasn't on the books at the time
they did what they did.
Mhmm. Because people willobviously, you know, more more
(16:33):
often than not act a certain waybased on what they know the
consequences are. So
Jack Sanker (16:37):
Yeah. And like I said, I mean, this can be
remedied going forward byfederal circuit court judge
setting the bond at a dollar.You know?
Danessa Watkins (16:44):
Sure. Sure.
Jack Sanker (16:44):
That still complies with Yeah. Rule 65 c. And that
still jives with, like, youknow, what's contemplated by
this provision that's tuckedaway in the spending bill. Mhmm.
Mhmm.
My producer Kevin just askedwhether the court can
retroactively require a bond ona TRO that's already been
(17:06):
ordered. I have no idea. That'sa I mean, that's a good
question, but I really don'tknow. But I would say it
wouldn't matter because, like,if this law is passed tomorrow,
there's no bond at the at thetime that the order was entered.
And that's what the
Danessa Watkins (17:18):
Oh, okay.
Jack Sanker (17:18):
That's what the new law says. Yeah. So you cannot
enforce this via the court'scontempt powers. So so here's
kind of to add more meat ontothis bone. I'll go I'm quoting
back from the piece by professorErwin Chemerinsky.
(17:40):
Quote, federal courtsunderstandably rarely require
that a bond be posted by thosewho are restraining
unconstitutional federal, state,or local government actions.
Those seeking such court ordersgenerally do not have the
resources to post a bond andinsisting on it would immunize
unconstitutional governmentconduct from judicial review. It
has always been understood thatcourts can choose to set the
bond at zero. Recent temporaryrestraining orders and
(18:03):
preliminary injunctionsillustrate this. For example,
federal chief judge JamesBoesburg issued a temporary
restraining order presentingindividuals from being flown to
maximum security prison in ElSalvador without due process and
ordered that Judge Boesburgfound the federal government
willingly disregarded.
Federal Judge Paula Zanis issuedorders affirmed by the Supreme
(18:23):
Court to have Kilmar, AbregoGarcia brought back from El
Salvador since he was takenthere, the one country in the
world that an immigration judgeruled he could not be removed to
without due process andaccording to a government lawyer
by mistake. Federal, courts,including the Supreme Court,
have issued orders preventingthe Trump administration from
using the Alien Enemy Act of1792 to deport more people to El
(18:47):
Salvador without basic dueprocess safeguards. It would
make no sense to require theplaintiffs in these suits to pay
bonds, to be able to have accessto federal courts, unquote. So,
yeah, I mean, the the thing thatjumps out here is that it's you
know, in addition to all ofthat, which is this is, you
know, effectively a tax onpeople that wanna use the
federal courts to protect theirtheir claim constitutional
(19:09):
rights Mhmm. Is that it's it'sretroactive.
You know, so previous standardcourt orders, restraining
orders, injunctions, in manycases, the judge did not require
the litigate to post thesecurity would be invalidated.
I'll go back to the piece here.Quote, because federal courts
rarely have required plaintiffsto post bonds, it would mean
that hundreds and hundreds ofcourt orders in cases ranging
(19:32):
from antitrust to protectionfrom private tax information to
safeguarding the Social SecurityAdministration to school
desegregation to police reformwould be rendered unenforceable.
Even when the government hasbeen found to violate the
constitution, nothing could bedone to enforce the injunctions
against it. In fact, thegreatest effect of adopting the
provision would be to makecountless existing judicial
(19:53):
orders unenforceable.
If enacted, judges will be ableto set the bond at $1 so that it
can easily be met, but allexisting judicial orders where
no bond was required wouldbecome unenforceable, unquote.
Danessa Watkins (20:07):
She's like, sitting here mind blown.
Jack Sanker (20:10):
Yeah. I mean, and is this going to be what's in
the final bill that gets throughthe senate? I have no idea. Like
I said, the the folks in thehouse did not seem to grasp what
this meant. I mean, even, youknow, as we sit here reading
this, it's you have to think tothe second and third order
(20:31):
effects of this, which areintentional.
I mean, that's Right. You wouldnot make it retroactive if you
didn't intend to invalidateorders that already existed.
Danessa Watkins (20:39):
And Yeah.
Jack Sanker (20:40):
That's the point.
Danessa Watkins (20:41):
Because, yes. Yeah. Say, again, legislation,
if it doesn't say one way oranother. It always is assumed
not to be retroactive becausethat's such, like, an extreme
position to take.
Jack Sanker (20:52):
Yeah. So the piece goes on to talk about, you know,
the kind of standard dispositionof the Supreme Court, which has
historically supported federalcourts' contempt powers. And
there has been attempts byCongress to limit contempt
powers in the past. For example,in 1924, the Supreme Court
(21:16):
indicated that it would beunconstitutional for Congress to
require courts to hold a jurytrial before a party could be
held in civil contempt violatinga judicial order. That's so the
congress was trying to or was inthe process of adding a jury
trial component onto a civilcontempt order, and the supreme
(21:38):
court said that would beunconstitutional.
So by the way, for those whodon't know, courts have pretty
broad contempt powers.Typically, it's to enforce
orders. The court enters anorder, and if you disobey it,
the court can do all kinds ofthings under their contempt
powers from fining you certainamounts to locking you up. I've
been in court when someone
Danessa Watkins (21:58):
has been I thought you were gonna say, I've
been locked up.
Jack Sanker (22:02):
No. I I've I've been in court when someone else
was being threatened with
Danessa Watkins (22:06):
Really?
Jack Sanker (22:06):
Yeah. It's a pretty won't talk Federal?
Danessa Watkins (22:09):
No. Really?
Jack Sanker (22:10):
Local. With someone who you might guess, but I will
we're not gonna talk about it onair.
Danessa Watkins (22:17):
Nah. I may know what you're talking about. Yep.
Jack Sanker (22:19):
And but in so far as, you know, like the the folks
I mean, if if you've, like,watched, like, judge Judy,
there's, like, the, you know,just, the bailiff and he's,
like, part of the TV show.Right? But there is that person
in real court too. Oh, yeah.And, like, that person
Danessa Watkins (22:32):
At least one.
Jack Sanker (22:33):
Yeah. That person has, like, handcuffs Mhmm. And
can slap them on you in court ifordered to do so. You do not get
a trial. Like, you don't youdon't have limited, like,
there's there's limited dueprocess when it comes to
contempt Right.
Powers of the court. So it's,you know, in the judge's
discretion, did you violate myorder? Yes or no. If so, here's
(22:53):
the consequences. Right?
That's like it's it's very rarefor people to be put in prison
for it, of course. But, like,fines and things like that, I
mean, I've seen it happen wherethe court will be like, you're
late on X, Y and Z document thatneeded to be filed. I'm going to
fine you $100 a day
Danessa Watkins (23:12):
Right.
Jack Sanker (23:12):
Until it's filed. I mean, that's a sanction thing as
well that's a different
Danessa Watkins (23:17):
But it is because you violated a court
order. Mhmm.
Jack Sanker (23:20):
So the court will just say
Danessa Watkins (23:21):
Until you comply. Yep.
Jack Sanker (23:23):
So it's usually, like, monetary stuff. Mhmm. It
is it's not often that they're,we're putting you in jail for
this stuff. But, like, it it ison the table. It's they were
able to do that.
Yeah. That has happened. Thereare instances of that happening.
This whole policy of, you know,we're going to try to use the,
(23:45):
the bonding requirements offederal rule 65 c, to kind of
tamp down challenges tospecifically immigration stuff.
It's it's shown up in otherplaces from this administration.
Previously, the White Housedirected the Justice Department
to ask the courts to requirechallenges to postpone when an
(24:08):
injunction was issued, which isin their rights to do. Mhmm.
That has not been the case, hasnot been standard practice. But
now, if you're, say, animmigrant who doesn't want to be
sent to die in a prison in ElSalvador, the Justice Department
is going to say, I want thecourt to require a bond under
the applicable federal rules.
Danessa Watkins (24:27):
Sure.
Jack Sanker (24:28):
Right. So that is something that was new, but
it's, like, broadly within theplaybook that already existed.
It was uncommon, but it existed.And now Congress just wants to
take away the discretion ofwhether or not, you know, it's
going to be required in thefederal judge. And, of course,
undo all of the orders that wereentered without there being a
(24:49):
bond, which is, I think, thebigger story.
So this now goes to, you know,senate. Who know? I mean,
there's a lot of horse tradingthat in this process. I mean,
I'm not, like, you know,legislative expert. I'm not a
legislative attorney.
I have no experience working ingovernment. But, generally, this
(25:13):
you know, what goes from thehouse to the senate, the version
that gets passed is can be verydifferent. It was a one vote
margin in the House. The Senate,the margin is also very tight,
you know, along the bipartisanlines. But, you know, typically
(25:34):
senators are a little betterinformed than your average house
representative.
So, like, they may know moreabout this, especially as people
are talking about it. Mhmm. Sowho knows? I mean and by the
way, like, unless you have alist of all orders that were
entered where there's no bonds,as we sit here now, we have no
idea
Danessa Watkins (25:51):
How many. Yeah.
Jack Sanker (25:52):
What's going to be done by this. So, like, the
administration's like, great. Wecan, like, you know, we can go
ahead and put these people in ElSalvador and without fearing
contempt, you know, from thecourt. But, like, you have no
idea what other Right. You know,government agencies
Danessa Watkins (26:07):
Mhmm.
Jack Sanker (26:07):
Or private actors
Danessa Watkins (26:08):
Mhmm.
Jack Sanker (26:09):
Are operating under a TRO and will wake up tomorrow
if this is passed and be like, Idon't have to listen to it
anymore. Yeah. And, like, so itcould be quite chaotic for big
companies, for people concernedwith civil rights and all sorts
of things. It's, I mean, it'sinteresting. And I like that
list of like, you know, if youwent to PACER, which is the
(26:30):
federal court document filingand management website, and
wanted to pull up everypreliminary injunction that's
been entered in the past, Idon't know, ten years, how many
do you think there are?
Danessa Watkins (26:41):
Right.
Jack Sanker (26:42):
Thousands?
Danessa Watkins (26:43):
Yeah.
Jack Sanker (26:43):
Yeah. So and then how many of those are still on a
temporary basis? Because thisdoesn't apply to permanent
injunctions. Sure.
Danessa Watkins (26:50):
I don't know. Litigation lasts years and
sometimes those injunctions lastthe whole time.
Jack Sanker (26:54):
Yeah. Yeah. So and like then then sort those by how
many of those were bonded. So Ihave no idea what would happen
if this actually gets passed.But it's, I mean, it's pretty
wide.
It's it's pretty Mhmm. You know,whatever. That's Now
Danessa Watkins (27:08):
that okay. So now that I'm thinking because
I'm like, I know I've beeninvolved in TRO things before
where there were sizable assets.Now I remember. And there was a
bond required. It was a caseinvolving airplanes and a fight
between who owned the airplanesessentially.
Mhmm. But because that's such amovable asset and could, you
know, kinda disappear
Jack Sanker (27:28):
Yeah.
Danessa Watkins (27:28):
Or be disassembled or, you know, it's
it's different than, you know, amoney asset or something,
although I guess money candisappear too. But, yeah, there
there was an injunction that wasentered and I do recall now that
our client had to put up a bondfor it. Yeah. Yeah.
Jack Sanker (27:43):
Yeah. And there's other things too. Mean, you you
you get bonds for appeals. Youget all sorts of things like
that. But, you know, this is avery, like, in the trenches,
like, in the fine print tweak tothe existing system that could
have, you know, pretty dramaticresults if it's passed as is.
(28:05):
And politically, it's, you know,it's very likely motivated by
immigration policy concerns ofthe administration. I think the
folks responsible for passing ithave so much as said so, that
it's meant to they say that it'san attempt to tamp down on what
(28:25):
they call like frivolouslitigation Mhmm. And also to
curtail the injunction powers ofthe circuit courts of the the
federal districts. So, yeah,we'll see if this makes it
through the senate into thefinal bill. Even if they removed
the post or or even if theyremoved the, the provision
(28:46):
which, you know, makes it applyretroactively, going forward,
it's still, I mean, you know.
Danessa Watkins (28:53):
Yeah. But I'm okay with it. If I would be
okay. I I think it's areasonable
Jack Sanker (28:58):
Sure.
Danessa Watkins (28:58):
Bill if you remove the retroactive. That's
the part that I'm like
Jack Sanker (29:02):
Well, well, if you remove the retroactive party to
accomplish, it's nothing becausethe court can the court can just
have
Danessa Watkins (29:07):
the bond as a dollar. That's why I'm okay with
it.
Jack Sanker (29:09):
Right. Yeah. Yeah. But I mean, there's no point to
it if it's not retroactiveunless unless, you know, people
are concerned about the courtbeing able to collect $1. Right.
And then to then
Danessa Watkins (29:17):
Well, I mean, are and that's that's making an
assumption though, right, aboutthe judge. You're not always
gonna get judges that are, youknow, that are sympathetic to
people bringing constitutionaltype claims. So I mean But we
already have the rule in placethat would Yeah. So
Jack Sanker (29:36):
Yeah. I mean, so it it's just it it would be a weird
it's a weird box to open.
Danessa Watkins (29:42):
I just also I think that more often and I
don't know the statistics onthis. This is just based on like
my assumptions, I guess. So, youknow, take it for what it's
worth. But I would think thatthis is gonna affect private
citizens and businesses Sure.More than it's ever gonna
benefit the government.
Like, think the amount of, like,probably current injunctions and
TROs against the government isway less than it is against
Jack Sanker (30:05):
It's it's
Danessa Watkins (30:06):
private citizens and businesses.
Jack Sanker (30:07):
Yeah. Certainly. It's going to be like, again,
all those things we mentioned,like intellectual property and
Mhmm. Business tort and all thatstuff. Right.
These things happen all thetime. Right. Like I said, people
are gonna wake up tomorrow andrealize, like, if I violate this
court order, there's nopossibility of me being held in
contempt. Yeah. So why wouldn'tI just violate the court order?
Exactly. You know? I mean, youcould still get, like, you could
still have a negative finding aton the merits at trial. Right?
(30:31):
You could still, like, be youknow, if you're being sued for,
you know, IP.
Danessa Watkins (30:36):
Yeah. But the damage may be done by then.
Jack Sanker (30:38):
Yeah. But you right. Yeah. Exactly. Which is
the whole point of TROs andpreliminary injunctions is to
avoid that.
Mhmm. So, yeah. I mean, it'sit's yeah. It it basically I
mean, it it would cause like, itcould cause absolute mayhem.
It's interesting.
I mean, it's one of those thingsthat, like, doesn't really make
the headlines, especiallyregarding the spending bill,
(31:01):
everything else that's in there,etcetera. But our little neck of
the woods over here.
Danessa Watkins (31:05):
Yeah. Good find.
Jack Sanker (31:06):
Yeah. It's kind of an important one.
Danessa Watkins (31:08):
So Sneaky.
Jack Sanker (31:08):
There. Yeah. So we'll see if it gets passed.
We'll see what version of itgets passed. And if there's
anything worthwhile to come outof that, we'll let everyone
know.
Danessa Watkins (31:24):
Okay. So this what I'm gonna talk about here,
it's become a hot topic in ourcourts over the past few years.
And it's a situation where wereally have two different
interests at play that that needto be balanced. So one is the
presumption that the public hasa right to access judicial
proceedings, and that includesknowing who the litigants are.
(31:45):
But then on the other hand,people may have legitimate
reasons for wanting to bring alawsuit anonymously to prevent
further harm to themselves.
Well established, I think whatcomes to mind most frequently is
the protection of minors. So wesee cases that are filed using
only the minors initials, forexample, or they can just simply
(32:07):
be named as a Jane Doe or a JohnDoe. And we've also seen
pseudonyms traditionally allowedwhere people can show that for
whatever reason, revealing theiridentity in the lawsuit is going
to subject them to a substantialrisk of harm or some sort of
retaliation from a third party.But courts have now taken a
(32:28):
stance, and this is in recentyears, and they've determined
that the avoidance ofreputational harm or
embarrassment is not acompelling enough basis to file
under a pseudonym. So in otherwords, like the public's
interest in an open judicialprocess, that's gonna outweigh a
litigant's right to preservetheir reputation.
So, this issue is obviously ofinterest to me because it kind
(32:52):
of tears me in two directions.My practice is dedicated both to
freedom of the press, so thefree flow of reporting on public
information, but I alsoregularly assist clients in
reputational preservation. Sothere have just been times when
we've had to counsel clients andwe've talked about this in the
(33:13):
show as well. You know, you havea valid defamation claim. What
was said about you wasabsolutely not privileged and
you were harmed.
But if you file this lawsuit,you need to understand that
you're amplifying that false anddefamatory message. Mhmm. It's
gonna now reach people that itwouldn't have reached otherwise.
Jack Sanker (33:31):
Is it the Streisand effect? Is that yeah. Where it's
like you familiar with this?
Danessa Watkins (33:35):
No.
Jack Sanker (33:36):
Oh, yeah. It's by talking about the thing you're
not supposed to talk about, youare making people more aware of
it.
Danessa Watkins (33:42):
Oh, okay. Well, yeah. So that's exactly it.
Yeah. So, yeah.
I mean, it's a hard it's a hardbalance and I see definitely
both sides of the issue. Wedon't wanna preclude people from
righting wrongs simply becausethe harm of going through with a
civil lawsuit is is too great.But then, you know, putting my
(34:04):
defense attorney hat on which Iwear more often, it's like, hey,
plaintiff, you know, decide howmuch this case is worth it to
you. I guess the idea of havingyour name on a public filing and
then going through discovery onmatters that deal specifically
with your reputation, you know,that that could prevent a lot of
people from filing what wouldotherwise be meritless lawsuits
(34:26):
They just don't wanna openthemselves up to that. So the
recent decision that just cameout of the Seventh Circuit on
this issue, it came out in Marchof twenty twenty five.
It's John Doe versus MariahYoung among others. And mister
Doe filed a lawsuit against theUniversity of Illinois or
(34:51):
different professors andadministrators at that
university. So what happenedwith him is he was investigated
and then ultimately dismissedfrom the school for sexually
assaulting another student. Hisclaims are that the university's
(35:12):
investigation was discriminatoryand violated his right to due
process. So he initially filedthis motion with his complaint
asking to proceed under apseudonym.
The defendants at the time, sothe university officials, they
didn't object to it. But thenwe've had these recent decisions
come down in cases similar tothis where the Seventh Circuit
(35:36):
has said you don't have a rightto file under a pseudonym. So
once those there are two inparticular that came down last
year. Once those came out, theuniversity changed its tune and
said, you know what? Actually,we do object to proceeding under
a pseudonym.
I think probably for the samereasons that I mentioned that,
you know, once you kind of takethat mask off, it it may change
(35:57):
things for you. You may notwanna continue with this lawsuit
Yeah. For example. So John Doe,when he was a student at the
university, he and I I didn'tlook up the specific facts, so
I'm just kind of going off ofthe summary. I think probably
the specific facts are importantbecause it seems a little a
(36:18):
little weird how they'redescribing it.
But he and a fellow studentwhose name just happens to be
Jane Roe. Okay. Or maybe that'swhat they're I think that has to
be what they're applying to her.They're not saying that's a
pseudonym, but I have to imagineit is. They're not calling her a
Doe because she's not a party tothe case.
So they're saying Roe. Mhmm.Okay. So miss Roe, she had filed
(36:41):
a complaint under Title IX withthe Office of Student Conflict
Resolution accusing John Doe ofunwanted touching while the two
were visiting Nashville. Now,say that like with a question
mark and I wonder what the realfacts were because I don't
understand how that ties to theuniversity.
Yeah. Would seem you know what Imean? If if there was some
(37:02):
unwanted touching that occurred,you would think that'd be just
be a criminal matter. I'm notsure how the
Jack Sanker (37:06):
All touching in Nashville is unwanted.
Danessa Watkins (37:08):
I'm sorry.
Jack Sanker (37:09):
If you've ever been.
Danessa Watkins (37:10):
Valid point. But for whatever reason, she
brought it to the university andand they investigated it and
found Doe to be culpable,charged him with sexual assault
as well as drug manufacturing,sale and distribution because
apparently Doe and Rowe ingestedmolly during this whole
(37:32):
incident. So Doe appealed. Hewas denied and then, as I
mentioned, was dismissed fromthe school. So he claims that
the university, subjected him torace, gender, and disability
based discrimination.
He has a visual impairment and alearning disability and failed
to give him the due process thathe deserved. He also brought a
(37:55):
breach of contract action, whichI thought was interesting. Doe
represents himself as a blackman. He represents Ms. Rowe as a
white woman.
And he is claiming that byfiling this lawsuit and
discussing the details of theirinteractions, that creates a
(38:17):
risk of substantial harm to himbecause, according to him,
interracial sexual relationshipsbetween white women and black
men are the subject ofheightened prejudice and violent
responses that create a tangiblerisk of retaliation and animus
against him. That's a quote fromthe Seventh Circuit decision.
He, of course I mean, there's aplethora of of things from our
(38:41):
history, including case law,actually, as recent as 2022,
that notes that, yes, this thisprejudice exists. There's a
history of It is it is aprevalent issue and something
that courts take seriously.However, our district court, our
Central District Of Illinois, aswell as the Seventh Circuit
(39:03):
found that Doe did not contactexcuse me, connect his current
circumstances to this thesehistoric injustices.
So, yes, we recognize thathistorically this has been an
issue, but you have not shownus, mister Doe, how you
personally are subject to, youknow, harm or the likelihood of
(39:26):
harm by revealing your identityin this case. They the court
cited to a Seventh Circuitdecision where the litigant who
filed as a Doe did meet thatbecause they showed that they
personally had been subject toto hate crimes and violence
because of their religion. So ingoing forward with a religious
(39:50):
based claim, they wanted toprotect their identity and the
court was like, yeah, that makessense here. But for mister Doe,
he did not meet that threshold.
Jack Sanker (39:59):
I see. So it's not connected to his inner the
claims that he's bringing arenot sufficiently connected to
his interracial marriage suchthat that could be the reason
for his anonymity with respectto this claim.
Danessa Watkins (40:09):
Right. He hasn't Yeah. So the court and
the court went so far as towelcome comment from Ms. Roe and
said, you know, we wanna hearfrom you. If, mister Doe's
identity is revealed, does that,make it more likely that you are
gonna be found out?
That you're gonna be identifiedas the sexual assault victim?
(40:31):
And she wrote to the court andsaid, I have no concerns about
that.
Jack Sanker (40:34):
Shouldn't have done that if that's
Danessa Watkins (40:35):
Well, I think that obviously worked against
him because the court goes togreat lengths to to protect
sexual assault victimsespecially if they're not a
party to a litigation. So Ithink if she had legitimate
concerns, then probably thecourt would have allowed it. But
so yeah. Anyways, this his hispetition got got overturned and
(41:01):
the court reversed his right tofile as a doe. The seventh
circuit sent it back down to thedistrict court and said, he can
proceed with his case but heneeds to reveal his identity.
Jack Sanker (41:15):
Right. So To the public by the way.
Danessa Watkins (41:17):
To the public needs to refile his complaint
with his real name Yeah.Essentially.
Jack Sanker (41:21):
The the one thing just because I mean I don't I'm
not in this area of law, but I II know this but the the audience
like may not. The and this isnot a situation where the
identity of the claimant iswithheld from the defendant or
from the court. Correct. So thethe court and the defendant both
know who this person is. It's asituation where the name is
withheld from the public filing.
(41:42):
So it's, you know, it's not asthough you're being sued by
someone that and you're notbeing told who you're being sued
by.
Danessa Watkins (41:46):
Right.
Jack Sanker (41:47):
So yeah. Just point of clarity.
Danessa Watkins (41:48):
Yeah. Exactly. And if there were, if there was
anything that was gonna be filedwith the court that had his name
in it, that would be redacted.It's essentially just
Jack Sanker (41:58):
Not like an anonymous lawsuit.
Danessa Watkins (41:59):
Right. Right. Yep. So this case goes back down
to the district court and I hadto look up the pacer just to see
what was going on. So on April22, the district judge entered
an order saying, John Doe, youhave until May 5 to reveal your
name.
Otherwise, your case will bedismissed. That deadline came
(42:21):
and went. May 6, the judge gavehim one final chance, you know,
reveal yourself. Or by May 12,this case will be dismissed.
Again, nothing.
So on May 14, a dismissal wasentered without prejudice, for
failure to follow the SeventhCircuit order.
Jack Sanker (42:38):
Okay.
Danessa Watkins (42:39):
So he could still decide to refile his case
under his own name.
Jack Sanker (42:43):
Within the statute.
Danessa Watkins (42:44):
Yep. But I think that's, you know, that's
interesting. So, you know, he henow that he can't have this
shield is not gonna pursue hiscase.
Jack Sanker (42:52):
Right.
Danessa Watkins (42:53):
Which, you know, I don't know the
background facts. I don't know,you know, if that should be a
judgment about the merits of thecase or not, but it is just Or
Jack Sanker (43:01):
it proves his point, which is Yeah. I I'm too
worried about the consequencesof this that I've I've decided
against pursuing my rights underthe lawsuit.
Danessa Watkins (43:08):
Exactly.
Jack Sanker (43:08):
Yeah. Or like you said, it could be it could show
that the case is not very Yeah.
Danessa Watkins (43:13):
Yeah. We can't we can't really say one way or
another. But so this, this issuedefinitely, is something I've
dealt with in my practice and, Ican't get into, you know, the
details of cases. But just oneexample of how how rulings like
(43:34):
this can affect people, and whyI don't think it should be a
blanket rule that, you know, youcan only file under a pseudonym
if you're a minor, a sexualassault victim, or, you know,
some other category. We had a adefamation case where this
person's life was, like,destroyed.
I mean, destroyed by this otherperson. They put out fake
(43:58):
Instagram accounts, fakeLinkedIns, you know, sent
messages. Were Yes. Likeaccusing him of crimes, you
know, sending what would be, youknow, considered private
pictures and videos to like hisbosses and just I mean like this
went on for years and finallygot to the point where the
(44:20):
person had enough and wanted tofile a lawsuit which included, a
defamation claim. And but, youknow, as much as all like hit
all of his immediate communityand, you know, to the extent
some of his extended communitywas affected by this, it doesn't
mean that the whole world knewabout it, you know.
And so to his point, was thereare people who have never seen
(44:44):
these accounts, who would neverknow about this, who would never
see these pictures of me unlessI file this lawsuit. Mhmm. And
so we went, you know, with awith a John Doe And it's like,
all was good until out ofnowhere, a professor intervened
in the case and took a positionthat under the First Amendment,
(45:06):
he had a right to know who JohnDoe was. This was someone who
lives thousands of miles away,had absolutely no, you know,
nothing to gain from the case.But then I started looking into
it and this this happens acrossthe country where people
seemingly having no interest inin a case will intervene.
Jack Sanker (45:26):
Nothing better to do.
Danessa Watkins (45:27):
I I'm just like, what yeah. Like, what are
you gaining from this? You know,like, let the defendant make the
argument that that someoneshouldn't, you know, proceed
under a Jane Doe or a John Doe.But it happens and, you know,
again, I'm a defender of theFirst Amendment but sometimes
it's like, stay in your lane alittle bit. So yeah.
(45:52):
Interesting and I guess it justlike serves as kind of another
warning. Like you really gottathink about what's at play if
you're gonna file a lawsuit andyou can't just assume that your,
you know, your right to proceedunder a pseudonym is gonna be
upheld.
Jack Sanker (46:08):
Right.
Danessa Watkins (46:09):
You gotta think like judges understand the
importance of keeping theirrecord open to the public. So if
they do, under the rarecircumstances, allow for
something to be sealed or allowfor someone to proceed
anonymously, then, you know,that's a well thought out
decision. But, yeah. I don'tknow. If you have if you have
time on your hands and wannajust start scouring for Jane Doe
(46:29):
and John Doe's and intervene,then, you know, have at it.
Jack Sanker (46:33):
Yeah. I and the particular individuals that are
doing this, I mean, it's it'snot like easy or cheap even to
like intervene in a federallawsuit in a well different, you
know Yeah. Jurisdiction orwhatever. Right. So they're
motivated people.
Danessa Watkins (46:47):
For sure.
Jack Sanker (46:47):
That's fascinating.
Danessa Watkins (46:49):
Mhmm.
Jack Sanker (46:50):
Alright. Thanks, everyone. That's the show. As a
reminder, you can hear us, everytwo weeks on Apple Podcasts,
Spotify, YouTube, wherever youget your podcasts. Otherwise, we
will talk to you soon.
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